POPULAR SOVEREIGNTY VIS-À-VIS NATIONAL SOVEREIGNTY: A COMPARATIVE ANALYSIS OF FRANCE AND INDIA

 

 

 

                                                         AUTHORED BY - RISHABHA SINGH

                                                             LLM

 

 

 

 

 

 

ABSTRACT

This research paper delves into the complex relationship between popular sovereignty and national sovereignty, focusing on the distinct contexts of France and India. Popular sovereignty, a fundamental democratic principle, posits that ultimate authority resides with the people. Meanwhile, national sovereignty emphasizes the autonomy and power of the nation-state in international affairs. This study explores how these two concepts interact within the political systems of France and India and the implications for democratic governance.

 

The research employs a comparative approach, utilizing both historical analysis and contemporary case studies to investigate the evolution of popular and national sovereignty in each country. It examines key constitutional developments, electoral systems, and political dynamics to shed light on the ways in which these two sovereignties interplay.

 

Findings reveal that while both France and India uphold democratic principles, their interpretations and practical applications of popular and national sovereignty differ significantly. France exhibits a strong emphasis on national sovereignty, with a centralized state structure, while India places greater emphasis on popular sovereignty, with a federal and pluralistic approach to governance. These variations have direct implications for their domestic policies, international relations, and approaches to democratic representation.

 

This paper offers a valuable contribution to the ongoing discourse surrounding sovereignty in the modern era. Understanding these variations deepens our comprehension of the diverse paths nations take in reconciling these two crucial principles within their political systems and helps inform the broader discussion on democracy and governance in an increasingly interconnected world.

“Of all the rights possessed by a nation, that of sovereignty is doubtless the most important.”               -    Jeremy Rabkin, Why Sovereignty Matters, p. 27

 

INTRODUCTION:

The sense of being supreme is always the feeling of the position holder as well as it is also the requirement of the position to govern the others with authority and to be in such position to command the others to let the orders and wishes to be fulfilled by the subordinates. Sovereignty is the quality of having supreme, independent authority over a territory. It is also normally understood to be a state which is neither dependent on nor subject to any other power nor state. It can be found in a power to rule and make law that rests on a political fact for which no purely legal clarification can be provided. A sovereign is a supreme parliamentary authority. This authority is absolute both in internally as well as externally in all matters. The concept of sovereignty is derived from the Latin term “Superanus” which means the supreme. Sovereignty resembles the idea of the power of the state to extract obedience from the people who inhabit it, i.e., the power of the state is unquestionable and it has right to demand the compliance from the citizens.

 

In political science, sovereignty is usually defined as the most essential attribute of the state in the form of its complete self-sufficiency in the frames of a certain territory that is its supremacy in the domestic policy and independence in the foreign one.[1]

 

Lassa Oppenheim defines Sovereignty as “There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.[2]

 

John Bodin defines sovereignty “The supreme power over citizens and subjects, unrestrained by law." [3]

 

Grotius defines sovereignty as “The supreme political power vested in him whose acts are not subject to any other and whose will cannot be overridden”

Also, definition of Sovereignty by Soltau is “Final legal coercive power by the state."

By combining all of the above definitions, political scientists can say that the

term sovereignty refers to a state's absolute, supreme, unlimited, inalienable,

indivisible, and permanent power. It refers to the state's absolute authority over

all individuals and organisations within its borders. This is the state's internal

sovereignty,   in   which   the   state   has   the   final   authority   to   make   laws,   issue

commands,   and   make   political   decisions   that   affect   all   individuals   and

organisations within its jurisdiction. It has the authority to impose obedience to

its laws and commands, as well as to punish those who disobey them.

By combining all of the above definitions, political scientists can say that the

term sovereignty refers to a state's absolute, supreme, unlimited, inalienable,

indivisible, and permanent power. It refers to the state's absolute authority over

all individuals and organisations within its borders. This is the state's internal

sovereignty,   in   which   the   state   has   the   final   authority   to   make   laws,   issue

commands,   and   make   political   decisions   that   affect   all   individuals   and

organisations within its jurisdiction. It has the authority to impose obedience to

its laws and commands, as well as to punish those who disobey them.

By combining all of the above definitions, political scientists can say that the

term sovereignty refers to a state's absolute, supreme, unlimited, inalienable,

indivisible, and permanent power. It refers to the state's absolute authority over

all individuals and organisations within its borders. This is the state's internal

sovereignty,   in   which   the   state   has   the   final   authority   to   make   laws,   issue

commands,   and   make   political   decisions   that   affect   all   individuals   and

organisations within its jurisdiction. It has the authority to impose obedience to

its laws and commands, as well as to punish those who disobey them.

By combining all of the above definitions, political scientists can say that the

term sovereignty refers to a state's absolute, supreme, unlimited, inalienable,

indivisible, and permanent power. It refers to the state's absolute authority over

all individuals and organisations within its borders. This is the state's internal

sovereignty,   in   which   the   state   has   the   final   authority   to   make   laws,   issue

commands,   and   make   political   decisions   that   affect   all   individuals   and

organisations within its jurisdiction. It has the authority to impose obedience to

its laws and commands, as well as to punish those who disobey them

By combining all of the above definitions, political scientists can say that the

term sovereignty refers to a state's absolute, supreme, unlimited, inalienable,

indivisible, and permanent power. It refers to the state's absolute authority over

all individuals and organisations within its borders. This is the state's internal

sovereignty,   in   which   the   state   has   the   final   authority   to   make   laws,   issue

commands,   and   make   political   decisions   that   affect   all   individuals   and

organisations within its jurisdiction. It has the authority to impose obedience to

its laws and commands, as well as to punish those who disobey them

By combining all of the above definitions, political scientists can say that the

term sovereignty refers to a state's absolute, supreme, unlimited, inalienable,

indivisible, and permanent power. It refers to the state's absolute authority over

all individuals and organisations within its borders. This is the state's internal

sovereignty,   in   which   the   state   has   the   final   authority   to   make   laws,   issue

commands,   and   make   political   decisions   that   affect   all   individuals   and

organisations within its jurisdiction. It has the authority to impose obedience to

its laws and commands, as well as to punish those who disobey them

By combining the above definitions by different philosophers, political scientist can say that the term sovereignty refers to the condition of state’s absolute, supreme, unlimited, inalienable, indivisible and indivisible and permanent power. It is state’s internal sovereignty that enables them to formulate the laws and make rules that should be followed by the citizens, it is external sovereignty that enables the government and state to protect the citizens from the external aggression and provide them the safe livelihood. In the similar way the popular sovereignty concept evolves from the concept that in the democratic country the people have right to elect their representative in free and fair manner, so their collective right to freely elect their representative and provide their say in that form is popular sovereignty of the people and citizens of the country. Within the Westphalian system of international relations, (it formed after the Thirty Year War and 1648 Peace Treaties of Westphalia), the principles of state sovereignty gradually obtained the all-European, and then universal appreciation.

 

POPULAR SOVEREINTY AND NATIOANL SOVEREIGNTY:

In general, popular sovereignty refers to the power of the masses as opposed to the power of the particular ruler of the class. It involves manhood, suffrage, with each individual having only one vote, and legislative control by people’s representatives. The public is seen as superior in popular sovereignty. Many writers on political science embraced popular sovereignty as a tool to counter monarchical absolutism.

 

According to Dr. Garner, “Sovereignty of the people, therefore, can mean nothing more than the power of the majority of the electorate, in a country where a system of approximate universal suffrage prevails, acting through legally established channels to express their will and make it prevail”.[4]

This concept of the popular sovereignty is in contrast with the concept of the parliamentary sovereignty and individual sovereignty. Popular sovereignty is an idea that also dates to the social contracts school (mid-17th to mid-18th centuries), represented by Thomas Hobbes (1588–1679), John Locke (1632–1704), and Jean-Jacques Rousseau (1712–1778), author of The Social Contract, a prominent literary work that clearly highlighted the ideals of "general will" and further matured the idea of popular sovereignty.[5]

 

Popular sovereignty is thus a basic tenet of most democracies. Hobbes and Rousseau were the most influential thinkers of this school, all postulating that individuals choose to enter into a social contract with one another, thus voluntarily giving up some rights in return for protection from the dangers. Republics and popular monarchies are theoretically based on popular sovereignty. However, a legalistic notion of popular sovereignty does not necessarily imply an effective, functioning democracy: a party or even an individual dictator may claim to represent the will of the people, and rule in its name, pretending to detain auctorial.[6]

 

National sovereignty on the other hand, is the concept that says the nation state have authority as well as full rights to implement the laws made by them and they are in itself are autonomous and not require any foreign supervision for their functioning and decision making. The state have ultimate control and autonomy over their territory and their citizens.

 

POPULAR SOVEREGNTY IN FRANCE:

May 5, 1789, the beginning of the infamous French Revolution. Historians around the world studied the causes of the French Revolution, arguably regarded as one of the most important events in human history. Many important ideologies were developed during this time period. The current western political philosophies in France is the result of the French Revolution which introduced the principles of civic equality and popular sovereignty that challenged the historical Three Estates.

 

Popular sovereignty is the idea that "governments derive their authority from the consent and support of people, not from God" (Alpha). Until the modern era, most kings and governments claimed their authority from God, a concept called divine right of kings. The concept was based in part of a "social contract" between individuals and their government, a concept created by writers like John Locke and Jean-Jacques Rousseau. A corollary of popular sovereignty is that if a government fails or mistreats its people, the people have the right to replace it (The Social Contract). Because the Third Estate formed the vast majority of the French nation, it was entitled to representation in the national government. Furthermore, popular sovereignty "replaces the bipolar structure of monarchy with the unipolar structure of self-government (Kelley). The power of authority is taken back to the people instead of the government. Popular sovereignty also, "in terms of mimetic theory, is the fundamental structure of sovereignty is the bipolarity of the victim and the mob, and in historical period we have considered, popular sovereignty is the myth of the murder of kings" (Kelley).[7]

 

Until the modern era, Europe’s kings and governments claimed their authority was derived from God, a concept called divine right monarchy. With the emergence of the Enlightenment, this idea was challenged by the new concept of popular sovereignty.

 

Popular sovereignty is the idea that governments derive their authority from the consent and support of the people, rather than from God. It was based in part on the idea of a ‘social contract’ between individuals and their government, a concept advanced by writers like John Locke and Jean -Jacques Rousseau. A corollary of popular sovereignty is that if a government fails or mistreats its people, the people have the right to replace it. This principle was used to justify the American and French revolutions. Popular sovereignty underpinned  Emmanuel Sieyes ‘ What is the Third Estate?. Because the Third Estate formed the vast majority of the nation, Sieyès argued, it was entitled to representation in the national government.[8]

 

The transition from royal to popular sovereignty is a transformation of the basic pattern of victim and group. The two poles of king and crowd become the single pole of the crowd governing itself. The line between victim and group is erased, and the victim's function as the conductor of violence out of the group is suspended. The group takes the violence that was focused on the victim back into itself. This violence has, however, been shaped by its long attachment to the king and so its return does not cause the group to revert to a total sacrificial crisis. There is increased disorder and victimage during the transition from monarchy to democracy, and the king has to act out the role of victim, but the sacral control that kingship exercised over violence still holds more or less and royal violence becomes mutatis mutandis the democratic violence of the general will. Royal power becomes popular sovereignty and divine right becomes civil religion.

According to mimetic theory, therefore, the deep structure of the transition from royal to popular sovereignty is the reversal of the direction of the surrogate victim mechanism. Originally the mechanism worked from the inside out, now it works from the outside in, originally by exclusion, now by inclusion. The victim was originally expelled and killed, and from a place outside the group exercised the ordering power of the sacred. It threatened and it promised, and from it emanated the powers of prohibition, ritual, and myth. This power is now taken back into the group. In a vivid metaphor that occurs often in the royalist propaganda of the revolution, the mob ingests the victim and thus dismantles the bipolar structure of victim and group, ruler and ruled, king and crowd. Popular sovereignty replaces the bipolar structure of monarchy with the unipolar structure of self-government.[9]

 

POPULAR SOVEREIGNTY IN INDIA:

The logic of the presence of abundant checks and balances in the Indian Constitution is explained by the author as having a basis in the Indian perception of popular sovereignty at the time of founding. A scheme where people remained outside the decision-making process while virtual sovereignty continued with the people is what necessitated the checks and balances. The underlying notion, which needs evaluation for Sen, seems to be the constitutional premise of lack of legitimacy of electoral wins to change the resolutions made by the people at the founding. The 'preservationist role of judiciary is justified in this model, as it can invalidate decisions and actions beyond the constitution.

 

The proposition that constitution alone can provide for its own transformation is challenged by the author by arguing that changes ought to happen by new forms of engagement even outside the formal amendment process. The justification is the experience of revolutionary forms of political participation of the colonial period. Translation of such an argument into practice sometimes may be too strenuous for the Constitution, accepting that revolutions are never meant to be cakewalk. Taking cue from the 'new beginning' argument by Sen, it could be equally argued that the 'new deal' shift in the U.S. Constitution definitely sought a break from the established past, but was a short stint. The constitution and its philosophy endured as it was designed. The same argument in the contemporary Indian scenario would sure be handy for the advocates of new economic policy, the only notional impediment for which is the declared socialist philosophy, as judiciary has already given a pass by.

 

The popular basis of revolutionary interlude of breaking away from the colonial regime and giving a constitution unto themselves is not beyond challenges. People's part in the working environment of Indian politics, it can be argued that, has reduced to electoral participation. The present working mode amply provides spaces for interest groups to further their agendas. The position is that a "deepening dialogue between leaders/citizenry could generate popular consent for a break with the past and lead to significant political achievements and that the mass movements can create an environment which leadership cannot obscure. The real Indian politics in its complexity is a classic example of how this theoretical position loses its ground impractical. The Narmada or the SEZ issues could be examples of failure of the optimum discourse models. The endeavour here is to create a framework to understand the relationship between popular sovereignty and constitutionalism. The suggested framework create three fragments; the direct exercise of people's sovereignty - period of independence, self realization of the popular sovereignty of its potential to break from the past and create new framing of Constitution, and the exercise of popular sovereignty in the institutionalised state setting.[10]

 

CURRENT SIUATION OF POPULAR SOVERERIGNTY IN FRANCE & INDIA:

FRANCE: The French Constitution embodied the concept of the popular sovereignty in itself which can be seen in their constitution also. The TITLE 1- On Sovereignty consists of the Article 2, 3 and 4.

 

Article 2- says that “the Principle of the Republic shall be: Government of the people, by the people and for the people”. This idea in itself consists the core of the popular sovereignty that the government which will be elected works for the people and it will be elected by the people itself. The wordings of the article include the essence of the sovereignty which resides in the hand of the people and the same is essential feature of the popular sovereignty.

 

Article 3- says “National Sovereignty shall vest in the people, who shall exercise it through representative and by means of referendum. All French Citizens of either sex who have reached their majority and are in possession of their civil or political rights may vote as provided for the statute”. These wordings strengthen the popular sovereignty and completes the essential elements of the popular sovereignty.

 

Article 4 - Political parties and groups shall contribute to the exercise of suffrage. They shall be formed and carry on their activities freely. They shall respect the principles of national sovereignty and democracy.

 

Statutes guarantee the pluralistic expression of opinions and the equitable participation of political parties and groups in the democratic life of the Nation.

 

All the statements made in the TITLE 1 of the French Constitution are the core values that provides strength to the sovereignty of the nation. as regards the holder of the sovereign power, Article 3 of the 1958 Constitution encapsulates a consensual approach. It reconciles the two ideas of popular and national sovereignty, thus definitively assuaging the old doctrinal quarrel between the theories developed respectively by Jean-Jacques Rousseau and Emmanuel-Joseph Sieyès, even though national sovereignty and its corollaries remains the key principle.

 

The Fifth Republic has established a mixed or hybrid regime, parliamentary at root but with a presidential twist. The result is an arguably ‘double legitimacy route’38 which separates the classical representative form of government through elected members of Parliament and the exercise of the people’s sovereignty via the President of the Republic. In the words of de Gaulle, the President ‘is and ... is the sole delegate and representative of the nation in its entirety’;39 in other words, the President of the French Republic is the ‘depository’ of popular sovereignty, a situation which creates a kind of competition between the two representative forms of government, namely the Parliament through its representatives and the people through its President. This is less the paradox than the originality of the regime established by the 1958 Constitution whereby a ‘Republican monarch’ was understood to be in charge of popular sovereignty and the general interest while also being affiliated to a specific political family. In sum, the concept of popular sovereignty in the French political and constitutional system is intrinsically linked to the executive power which explains the specific layout of the referendum provisions in the 1958 Constitution, and the possibility of calling on the people’s decision at the initiative of the President under Article 11 in particular.[11]

 

INDIA:

The declaration "We the people... signifies the source of authority, states that ultimately people of India are sovereign, that the Constitution is not a gift of anyone else (say the Government of India Act, 1935 was a gift of the British Parliament, even the Indian Independence Act, 1947 of British Parliament was not our source or authority). The constitutions of USA and France, early constitution makers of the world also draw the authority from their people and consider people to be sovereign even today.

 

The Preamble emphasizes complete political freedom by declaring us as a sovereign entity. The core meaning of sovereignty is the supreme authority within a aerritory. D. D. Basu, s constitution expert, opines that the word 'sovereign" is taken from Article 5 of the constitution of Ireland. Sovereignty means ultimate power. In monarchial orders, sovereignty was vested in the person of monarchs. But in the republican forms of government, sovereignty is shifted to the elected representatives of the people. Our Preamble begins with the words, "We, the people of India", thus clearly indicating the sovereignty of the people and the fact that all powers of government flow from the people. The Preamble has, therefore, cited the people as the ultimate source of the Constitution and its creatures. Thus the constitution of India declares that the ultimate sovereignty rests with the people of India as a whole. Article-51A(c) says that it shall be the duty of every citizen to uphold and protect the sovereig003nty, unity and integrity of India Sovereignty in the Preamble also implies that India is internally powerful and externally free. India is free to determine for herself: there is none to challenge its authority. The government is not controlled by any outside power.[12]

 

It is often argued that popular sovereignty and constitutionalism are conceptually incompatible as they exclude each other, on the basis that the people are (properly) sovereign only before the establishment of a constitution, and once a constitution is in place, the people are either powerless, or the power they enjoy is not sovereign at all as their power is govern by the constitution.  in the contemporary framework of the Indian Constitution and the introduction of the Basic Structure Doctrine, the characteristic features of the Indian Constitution make it impossible for the contemporary Indian constitutional framework to accommodate popular sovereignty in practice. As the written Constitution possess the validity of a statute emanating from the sovereign people, which is superior to the present elected members of the legislative. The principle of popular sovereignty was woven into the Constitution and the people were sovereign in making the constitution. Although, after the functioning of the constitution the people are provided ample of power, in the contemporary Constitutional framework there is Constitutional Sovereignty.[13]

 

The popular sovereignty and constitutionalism are conceptually incompatible can be reached by arguing that popular sovereignty and constitutionalism exclude each other, on the basis that the people is (properly) sovereign only before the establishment of a constitution – once a constitution is in place, the people is either powerless, or the power it enjoys is not sovereign at all.37 In order to understand the structure of this argument it is necessary to consider the so-called ‘paradox of constitutionalism’ – a paradox that is generated by the irresolvable tension between constituent power and constituent form.

38

 

According to Loughlin and Walker: ‘Modern constitutionalism is underpinned by two fundamental though antagonistic imperatives: that governmental power ultimately is generated from the “consent of the people” and that, to be sustained and effective, such power must be divided, constrained, and exercised through distinctive institutional forms. The people, in Maistre’s words, “are a sovereign that cannot exercise sovereignty”; the power they possess, it would appear, can only be exercised through constitutional forms already established or in the process of being established. This indicates what, in its most elementary formulation, might be called the paradox of constitutionalism’.[14]

 

The paradox of constitutionalism captures the tension between the notion that governmental power must flow from the sovereignty of the people, and the notion that governmental power must be regulated and constrained by legal rules and principles. This tension seems to be irreconcilable, because the former notion appears to suggest that governmental power cannot have legal limitations (in the same way in which sovereignty is absolute); whereas the latter notion appears to suggest the opposite. Indeed, it seems impossible to hold that the power enjoyed by the people is sovereign, and therefore absolutely free (including the freedom to shape the constitution in any desirable form); and, at the same time, that the sovereign power of the people ‘can only be exercised through constitutional forms already established or in the process of being established’.[15]

 

CONCLUSION:

Popular sovereignty in its all forms stated from Europe in the infamous French revolution and expanded in the form of democracy to the other continents, resulting in the engulfment of the India as the wording of the Constitution itself starts from the “We the people of India” similar to the American and French Constitutions. The concept is very much enshrined in the constitution of both the countries as in French Constitution under Article 2,3&4 and in Indian constitution under preamble itself in form of “Sovereignty”. Different articles of the Indian Constitution such as Article 51 A(c) talks about the protection of the sovereignty of the nation is fundamental duty of the citizens of the India. In conclusion , it can be said that that both the vibrant democracies have sovereignty in its DNA without any doubt and it has emerged from the revolution whether in case of Frech revolution or Indian Independence movement.

 

 

 

 

 

 

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[1] Grinin L. E. Globalization and Sovereignty: Why do States Abandon their Sovereign Prerogatives? Age of Globalization. Number 1 / 2008

[2]  Lassa Oppenheim, International Law 66 (Sir Arnold D. McNair ed., 4th ed. 1928)

[3]  Appaodrai, A.,  The Substance of Politics, OUP, Delhi, 1985

[4] https://law.niviiro.com/different-kinds-of-sovereignty-political-science#

[5] https://resources.saylor.org/wwwresources/archived/site/wp-content/uploads/2011/03/Popular-sovereignty.pdf

[6] https://resources.saylor.org/wwwresources/archived/site/wp-content/uploads/2011/03/Popular-sovereignty.pdf

[7] https://www.ipl.org/essay/Popular-Sovereignty-In-The-French-Revolution-PK7UWC2NFJED6

[8] https://alphahistory.com/frenchrevolution/revolutionary-ideas/#Popular_sovereignty

[9] https://www.uibk.ac.at/theol/cover/contagion/contagion3/contagion03_hamerton-kelly.pdf

[10] Jasmine Joshep, Constitution of India: Popular Sovereignty and Democratic Transforms

[11] Marie-Luce Paris, Popular Sovereignty and the Use of the Referendum – Comparative Perspectives with Reference to France

[12] https://www.gacrkl.ac.in/coursematerial/sem2-ev2-chap1.pdf

[13] https://www.legalserviceindia.com/legal/article-6889-popular-sovereignty-and-the-indian-constitution.html

[14] https://ora.ox.ac.uk/objects/uuid:eb0a9f8f-f39c-43b0-8e47-f0521602588a/download_file?file_format=application%2Fpdf&safe_filename=Andrea%2BDolcetti%2B-%2BPopular%2BSovereignty%2C%2BConstitutionalism%2C%2Band%2Bthe%2BIndian%2BConstitution%2B-%2BFinal%2BVersion.pdf&type_of_work=Journal+article

[15] M. Loughlin and N. Walker, The Paradox of Constitutionalism: Constituent Power and Constitutional Form, OUP, 2008